KHALID (MIGRATION) - [2024] ARTA 124

KHALID (MIGRATION) [2024] ARTA 124 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rana Huzaifa Khalid
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318126

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 4 December 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Statement made on 04 December 2024 at 4:56pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – enrolment ceased – applicant repeated subjects – family bereavement – mental health issues – employment in Australia – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 21 February 2020.
The expiry date of the applicant’s student visa was 15 March 2024, providing for over four years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 31 October 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of their visa from 22 November 2022 until 31 October 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision.
On 8 November 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was listed to appear before the Tribunal via video hearing on 27 November 2024 but shortly after the Tribunal had declared a no show in his case, the applicant contacted the Tribunal claiming that he had been attempting to connect to the link with no success. The case was therefore adjourned to 29 November 2024, when the appeared before the Tribunal via video hearing to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be set aside. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);
b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.
The applicant was enrolled in a Bachelor of Business which was cancelled on 23 August 2021 for non-commencement of studies. He then enrolled in a second Bachelor of Business which was cancelled on 22 November 2022 with the student notifying cessation of studies. The applicant did not enrol in another course until his cancellation.
The Department sent the applicant a notice of intention to consider cancellation (‘NOICC’) on 9 October 2023. The applicant responded to this on 22 October 2023 and has filed further additional submissions since that time.
At no stage has the applicant contested the fact that he was not enrolled from November 2022-October 2023. Therefore, there are grounds for cancellation.
For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline of study and enrolment history
The applicant originally arrived in Australia in March 2020 at the age 18. He intended to complete a Foundation course and then Bachelor Business in Australia.
The applicant has filed evidence of completion of UTS Foundation studies from March 2020-January 2021 and from March 2021-May 2021. The applicant clarified at hearing that he had failed some units and so completed extra units in 2021. This meant that his original enrolment in a Bachelor of Business was cancelled as he did not commence his studies in March 2021.
The applicant re-enrolled in a Bachelor of Business from August 2021. He has filed evidence of having passed six out of eight units attempted in this course in post hearing submissions in an Academic Transcript dated 20 June 2023. I am very puzzled as to why the applicant had not filed this document prior to his Tribunal hearing. The applicant’s enrolment in this course was cancelled in November 2022.
The applicant claims that the COVID19 Pandemic followed by flooding in 2022 and 2023 in his home country had a devastating impact on his family’s financial situation.
The applicant’s grandmother died on 5 January 2023. He has filed a copy of her death certificate shortly prior to hearing. Again, I am puzzled as to why the applicant did not file this document sooner. The applicant submits that his grandmother had lived with him after her husband and son died and that he has an especially close relationship with her. He claims that the loss of his grandmother, together with the COVID19 Pandemic, the flooding in his home country and the financial strain on his family impacted his mental health considerably and also his financial situation.
The applicant claims to have sought a leave of absence from his University in November 2022 to return to his home country and has filed evidence of having engaged with his university about a reduced study load and re-commencing his studies and enquiring about his scholarship (these emails are dated February and March 2023). He has repeatedly given evidence that he was waiting for his new enrolment when he was in breach of his visa conditions. He conceded at hearing that from around April 2023 until his visa was cancelled it was ‘on him’ that he had not re-enrolled.
The applicant was contacted by the Department in early October 2023 about his contact details relating to his visa.
The applicant has filed an initial psychological assessment report from an Australian psychologist dated 17 October 2023, referring to an assessment undertaken on 5 October 2023 (‘the Australian report’).
The applicant has filed a further psychological assessment report dated 22 February 2024 referring to ‘Date of Assessment: 9th March 2021’ (‘the Pakistan report’). This document is entirely in English and apparently relates to monthly counselling sessions the applicant undertook remotely with a practitioner in Pakistan from ‘November 2020 to the present’, despite the fact that it has never been produced to the Department or the Tribunal prior to 26 November 2024, just three days before the applicant’s hearing before this Tribunal.
On 9 October 2023, the applicant was sent the NOICC. The applicant responded to the NOICC on 22 October 2023. That response did not include much of the material before the Tribunal. Significantly, the applicant did not file evidence of his grandmother’s death certificate, the Pakistan report or his course progress in his Bachelor of Business until the week or his hearing of 29 November 2024.
The applicant remains unenrolled because he does not presently have study rights on the bridging visa he has held since her visa was cancelled. Although he has been working. The applicant has filed a letter of offer for an Advanced Diploma of Information Technology but gave evidence that he does not wish to undertake this course, it was just the only course he could get offered to him.
Consideration of discretion to cancel the visa
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
I refer to and repeat paragraphs 18-28 above.
The applicant has been working onshore as a sales manager for a solar company although I found his evidence about this evasive at hearing. The applicant has previously worked for uber eats as well as his solar company work.
The applicant wishes to remain in Australia to complete a Bachelor of Business which he has attempted for one year prior to his enrolment cancellation. been attempting, intermittently, since his arrival in 2017. He claims that his goal onshore has always been to complete a Bachelor degree and he wishes to remain onshore specifically to complete this course.
The applicant gave evidence about his work history onshore which concerns me. The applicant has spent considerable time working onshore which I consider is not consistent with his submissions that he was unable to study.
The applicant has filed evidence of seeking a reduced study load and a leave of absence and re-enrolment in early 2023.
I empathise with the applicant in relation to the aforementioned challenges he has faced. I also understand that a visa cancellation can be disappointing for visa holders and their families.
I have considered all the evidence before me. I place some weight in favour of the applicant regarding this factor.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 30-34 above.
The applicant has filed evidence of the emotional and financial challenges he has faced during the COVID19 pandemic, his grandmother’s death and the floods in Pakistan.
The applicant has provided two psychological reports. I am very troubled by the Pakistan report. Notably, the Australian report makes no mention of the applicant having been engaged in monthly sessions with a Pakistani practitioner. I consider this very significant information which would be included in a psychological assessment. When I asked about this at hearing, the applicant said he may not have told the practitioner who completed the Australian report about his sessions with the Pakistani practitioner. I am troubled by this explanation. Further, the applicant gave evidence that his sessions with the practitioner who completed the Pakistan report were in Urdu while the report provided is in exceptionally articulate English and in many aspects mirrors the Australian report. I have serious reservations about the authenticity of this document and have doubts about whether the applicant was engaging with a practitioner in Pakistan remotely every month. This in turn raises concerns about whether he has complied with the PIC4020 criteria required by the Act and Regulations in relation to student visas. Should the applicant make a further student visa application, this evidence will be critical to any assessment of his application.
The Australian report refers to the challenges faced by the applicant as described in paragraph 38 and states that the applicant reports having insomnia, exhaustion, fatigue, frequent headaches, loss of appetite leading to weight loss, depressed mood, feelings of worthlessness. The Australian report states that the applicant’s presentation is suggestive of a diagnosis of depression and anxiety disorders.
I have concerns that the Australian report was obtained as a consequence of the applicant’s realisation that his visa may be cancelled for non-enrolment. I have concerns that the Pakistan report may not be an authentic document and may have been produced to allay the suggestion that the applicant only sought help after he realised his visa may be cancelled. At hearing when asked about this, the applicant gave evidence that he has changed representatives and also had been advised that a document from Pakistan would not be considered and not to file same. I find this explanation difficult to accept.
I consider the applicant’s grandmother’s death, the COVID19 Pandemic and flooding in Pakistan and the consequential emotional and financial problems faced by the applicant were out of his control. I also consider mental ill health can feel out of one’s control. However, it was open to the applicant to return to Pakistan at any time. I also consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.
Taking these factors together as a whole, I place some weight against cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant has otherwise complied with student visa conditions.
The applicant’s breach of the condition of his visa to remain enrolled is concerning, being eleven months. I consider the eleven month breach a significant breach and place weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing about how disappointing it will be for him and his family if he has to return to Pakistan without a Bachelor qualification and how essential it is for his future career progression. He also gave evidence about his role within the family as to oldest son, the expectation that he return to Pakistan and support his family. The applicant also gave evidence that this family’s financial situation is now stable and improved and he can afford to study.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study. I recognise that the hardship is felt by family members who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.
Ultimately, I consider the evidence for and against cancelling the visa finely balanced in relation to this consideration.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matters
I consider the factors for and against the applicant in this case very finely balanced. Ultimately, I consider the applicant ought to be given the chance to complete the study he initially proposed to undertake now that his situation is stable. One factor in this decision has been the applicant’s application to his study in his first two and a half years onshore and his relatively young age at time of arrival. Another factor in this decision has been the evidence that the applicant will get credit for the units he has undertaken in his Bachelor of Business, will complete his remaining units of study and return to his home country. Should the applicant conduct himself in such a way that the Department has cause for concern about his study and intentions onshore, the evidence he gave in connection with this case will clearly be relevant to any assessment his intentions and study behaviour in Australia.
I am very concerned about the Pakistan report and consider the applicant may not be in compliance with the PIC4020 criteria. However, I consider it inappropriate to change the question for determination before me and consider that if the applicant has provided a bogus document, he ought to be given the opportunity to address this at first instance before any formal assessment of the document is made by this Tribunal.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.
Date(s) of hearing: 27 and 29 November 2024
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)a Foreign Affairs student; or
(c)a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)changes their enrolment to a course at the Australian Qualifications Framework level 9.